Merchant v. Jordan

Hardin, P. J., (after stating the facts substantially as above.)" We recognize the rule that this court may review the evidence, and, if the verdict is contrary to the weight thereof, grant a new trial. Macy v. Wheeler, 30 N. Y. 231; Manufacturing Co. v. Foster, 51 Barb. 351. We must also recognize in this case the rule, well settled’ by authority, that it is the province of the jury to determine where the truth lies when parties are witnesses in their own behalf. Elwood v. Telegraph Co., 45 N. Y. 549; Kavanagh v. Wilson, 70 N. Y. 177; Gildersleeve v. Landon, 73 N. Y. 609; Koehler v. Alder, 78 N. Y. 287; Longyear v. Insurance Co., 20 Wkly. Dig. 165; opinion of Barker, J., in cases cited; Carbon-Works v. Schad, 38 Hun, 71; Kinney v. Pudney, 46 How. Pr. 258; Boone v. Kalb, 20 Wkly. Dig. 26. The only witnesses sworn upon the trial were the plaintiff and the defendant. There was also produced an agreement executed by the parties in December, 1878. After a careful consideration of the testimony found in the appeal book, we are notable to say that the verdict by the jury is against the weight of evidence. It was for the jury to determine whether the agreement claimed by the plaintiff to have been made by the defendant was made by the defendant, anti broken by him by refusing to deliver the note according to the terms of the agreement as testified to by the plaintiff. We observe that the defendant denies the terms of the agreement as stated . by the plaintiff, and has insisted in his testimony that he received the note as a collateral security, with no agreement to return the same to the plaintiff, or that he was to apply the proceeds of the note upon the bond and mortgage referred to. As already observed, it was for the jury to determine which told the truth in respect to the agreement at the time of the delivery of the certificate. We must accept their verdict on that subject. It is insisted by the defendant that at the time the agreement of 1878 was made between the parties, in respect to the foreclosure of the mortgage, the plaintiff waived all right to the note, or the proceeds thereof; and that the agreement entered into by the parties on that day was on the assumption that the plaintiff waived all claim to the note. The defendant testifies to that effect. The plaintiff stoutly denies the assertion of the defendant in that regard. It is observable that the agreement entered into between the parties on that occasion is entirely [470] silent on the subject of the note. We think, undera-ll the evidence, the trial judge committed no error in submitting the question of fact in regard to what took place at the time of the execution of the agreement of December, 1878, to the jury. Their verdict is adverse to the defendant, and we see no legal ground upon which to interfere with the same, nor are we able to reach the conclusion that their verdict is against the weight of the evidence. 2. We see no error in allowing evidence of the amount of paper that was-put into the arrangement for reorganization of the insolvent railroad. 3. During the trial the defendant sought to show that the defendant had paid “a large amount of taxes to redeem these lands, and also to redeem the land that had been sold, and to pay taxes assessed subsequent to the giving of the mortgage, and whiló Mr. Merchant held the property.” At that time the agreement of 1878 had not been put in evidence, and, upon objection being made to the evidence offered by the defendant in respect to the taxes, the court remarked, viz.: “I shall assume that the action is not for an accounting; therefore I will sustain the objection until that writing is produced. ” The defendant’s counsel took an exception. Thereupon the court replied, viz.: “I put it on the ground that, as the case now stands, I cannot see the pertinency of it.” We think it was within the discretion of the court to regulate the or^ der of proof to be given, and, as the evidence was not offered thereafter, and an exception taken to its exclusion, we see no error presented .by the exception taken at folio 62. 4. At the close of the charge of the learned trial judge the defendant made several requests. To most of them the court yielded in affirmative assent. One of the requests was as follows: “That even if the defendant did agree at the time he took said note to return it to the plaintiff in case it was not paid at maturity, yet if ..after that, and on or about December 20,1878, when the agreement of that date was made, he released all claim to said note, and the avails ' thereof, then their verdict must be for thedefendant. ” To this request the court replied, viz.: “I will so charge if it was released for the consideration; and there you have the testimony of Mr. Jordan on ofte side, and Mr. Merchant on the other; and it is claimed that Mr. Merchant is corroborated by the writing.” Thereupon the defendant’s counsel remarked: “We except to the qualifications.” We think the exception presents no error. We are not able to see that the omission to,insert an agreement to return the note in the instrument of December, 1878, deprived the plaintiff of the right to insist upon the fulfillment of the agreement which was made between the parties, January, 1876, in respect to the note. The circumstance that any reference to the note was omitted from the agreement of December, 1878, was one to be considered incidentally in ascertaining the actual agreement between the parties in respect to the note. We have looked at the other exceptions taken at the trial, and are of the opinion that they present no prejudicial error. It follows from Che views that we have expressed that the verdict should stand. Judgment and order affirmed, with costs. Martin, J., concurs. Follett, J., not voting.